Answers To Common Elder Law Questions
Elder law is a complex area of law. At Law Office Of Douglas A. Oberdorfer, P.A., we receive questions from clients, as well as the children or spouses of seniors who need help with financial management, Medicaid planning and asset protection. Below are some of the common areas of concern regarding elder law.
What does it mean to have mental capacity?
Mental capacity, also sometimes referred to as mental competence, is a term that has different legal meanings in different circumstances. In general, it means you have the mental ability to make your own decisions. It often has four parts:
- You can understand information about a decision.
- You can hold that information in your mind long enough to make a decision.
- You understand how the decision affects you.
- You can communicate your decision to others.
Your ability to understand complex matters, such as whether to sell your house, may diminish before your ability to grasp a more general concept, such as wanting to give the house to your son when you die. If you are unsure whether you or a loved one has the necessary legal capacity to make a decision, speak with your treating physician.
What is the difference between guardianship and a power of attorney?
You can establish a power of attorney while you are still mentally competent, allowing a trusted agent to make financial decisions for you after you are no longer able. If you do not have a power of attorney before you lose your mental capacity, your family will have to request that the court appoint a guardian to help you. Because guardianship is a probate court process, it is much more costly and time-consuming.
I need to go into a nursing home but can’t afford it. How do I know if I am eligible for Medicaid?
Medicaid planning takes skill and specific legal knowledge. The best way to find out if you will qualify for Medicaid is to consult with our experienced attorney, Douglas Oberdorfer. Consulting with an attorney is an allowed expense under the Medicaid rules, and he can help you determine if you are eligible or if you need to take certain actions before you apply.
Can I keep my house or give it to a family member?
If your house is your legal homestead, the law protects it under certain circumstances. Medicaid rules do allow for very limited transfers to family, but these situations are case-specific. Consult with an attorney before you transfer any property if you plan to apply for Medicaid. Medicaid rules include a five year look-back period for all uncompensated transfers that could count against you when you apply.